Tuesday, April 7, 2015

The 2014 ILO protocol: a new standard, but will states make it real?

Anti-trafficking measures to date have been unsuccessful as they do not address structural labour governance failures. A new global treaty was adopted last summer that aims to do exactly that.

Governments began to react to the increased power of organised crime and the growth of illegal trafficking, including in human beings, during the 1990s. This drive culminated in 2000 with the passage of the Palermo Convention to combat organised crime and its Protocol to combat human trafficking. Since then, the fight against human trafficking and modern slavery has received political attention and millions have been poured into different anti-trafficking initiatives around the world. National penal laws have been adopted andnational referral mechanisms have been set up. Judges, special police units and border guards were trained to identify victims, while international cooperation and coordination improved through new intergovernmental platforms such as Frontex and Eurojust in Europe. Nevertheless, there is no indication that the level of ‘modern-day slaves’ in the world has decreased due to these developments. On the contrary, recent estimates suggest that the number has been rising. One can only conclude that, by and large, government responses have been ineffective.

Strong laws, weak protections

At least part of the explanation can be found in the broader socio-economic and political context of recent decades. While state interventions to combat trafficking have been strengthened in the criminal justice sphere, labour markets have been persistently deregulated and employment protections weakened. Nothing has been done to stop informal employment from growing in the uncontrolled shadows of the global economy. At the same time, excessive use of temporary and guest worker schemes, self-employment and indirect employment constructions through intermediaries and complex subcontracting have made work more precarious.

In addition, governments negotiate bilateral agreements in order to promote employment abroad, hoping that the ensuing remittances will stimulate development. Most bilateral agreements relating to migrant labour, however, are negotiated with a complete lack of transparency. More often than not they fail to protect migrant workers’ rights while undermining existing labour protection systems. In the rare cases where origin country governments include some protection measures for their migrant workforce in the negotiations, such as the Philippines, the subsequent implementation of these protections is rarely monitored.

The lack of coherence in labour migration governance, combined with the deregulated global labour market, create an environment in which unscrupulous businesses can pursue profit at the expense of vulnerable, often migrant workers. In addition, the clear preference for criminal justice responses to human trafficking result in those affected being treated as victims of crime rather than as workers deprived of their fundamental rights.

A paradigm shift in government responses is therefore urgent. There is a need to address what makes workers vulnerable. Rather than putting in place reactive measures to rescue victims, preventive measures should focus on equal treatment, income insecurity, living wages, real collective bargaining power, fair recruitment and employment protection.

As a result, a new ILO Protocol was almost unanimously adopted last June to complement the 1930 Forced Labour Convention (n°29). The Protocol addresses some of the issues mentioned and requires states to: extend coverage of law to protect all workers; strengthen labour inspection; better protect against fraudulent recruitment or placement; increase international cooperation; ensure access to remedy and effective compensation; and involve labour courts, labour administration, trade unions and employers’ organisations in anti-trafficking action.

The Protocol is one of the first examples to transpose the UN Guiding Principles on Business and Human Rights into a legally binding requirement. While the text suffered from tough negotiations with business, it explicitly outlines that businesses have the responsibility to “identify, prevent, mitigate and account for how they address the risks of forced or compulsory labour in their operations or in products, services or operations to which they may be directly linked.”

The Protocol has a broad coverage and has a lot of potential, but it is up to governments to make it real. States should regulate the conduct of businesses along corporate supply chains, address extraterritorial corporate abuses and ensure victims have an effective right to remedy.

It is up to governments to seize this unique opportunity to start addressing modern slavery without repeating the mistakes of the past. It is a classic example of a collective action dilemma, but governments around the world need to ensure that the new treaty becomes a strong regulatory instrument. If applied to all countries it will help level the multilateral playing field, protecting the workers and political leaders of (mostly) democratic countries against corporate power.

Governments can now do one of two things. They can continue the race to the bottom, outdoing each other in stripping away workers’ protections as they compete for foreign investment. Alternatively, they can agree to end ‘modern-day slavery’ and promote, ratify, and effectively implement the Forced Labour Protocol as the real new global standard.